Why Is Taxing the Rich So Difficult? In Part Because People Who Should Know Better Are Being Foolish

by Neil H. Buchanan

 

The Biden White House recently proposed what it calls a "Billionaire Minimum Income Tax."  On his show last night, Seth Meyers quipped that the proposal was "part of [Biden's] 2023 budget, specifically the part they'll have to cut out before it'll pass."  He is right, which is a shame, because this is another instance in which completely sensible tax policy is going to give way to ignorance and bad faith.

It is no surprise that Republicans oppose this idea.  Not only do they oppose anything that Democrats favor, but their very reason for being is to reduce taxes on the rich.  What is annoying, however, is that people who truly should know better are saying completely fatuous things about the proposal -- statements that are so misguided that it makes me think that there is simply no way that our political culture could ever move forward with even the most promising improvements to tax policy.

The Biden proposal is based on plain-vanilla tax concepts that have been settled for decades, not just as a matter of law but as a matter of simple logic.  Nonetheless, some non-Republicans are arguing that he is trying to pull a fast one to get his way.  Nothing could be further from the truth.

Campus Intellectual Debate and the Heckler's Veto: Who Gets to Decide What is Unreasonable?

by Neil H. Buchanan

 

Late last week, Erwin Chemerinsky and Howard Gillman co-authored an important opinion column in The Washington Post: "Free speech doesn’t mean hecklers get to shut down campus debate."  As the law dean at UC Berkeley and the chancellor of UC Irvine, respectively, Chemerinsky and Gillman speak from the position of administrators.  But as respected scholars, they also speak from the viewpoint of professors, and they do so with great authority.

 

I thus was not surprised to find myself agreeing with their essential point, which is that "[f]reedom of speech does not include a right to shout down others so they cannot be heard."  Noting that some people defend those who shout down others by saying that the hecklers are themselves engaged in free speech, Chemerinsky and Gillman conclude that "[t]hat is wrong in terms of both the law and appropriate campus policy."

 

Again, I agree with the principle that there can be no heckler's veto in the context of discussions of ideas.  I do, however, see this as an opportunity to further clarify some points that I made in two columns last week, first on Verdict and then here on Dorf on Law.  In those columns, I argued that people are allowed to be disagreeable in the public square, and (in response to a fatuous formulation offered by the editors of the New York Times), I noted that there is nothing wrong with people being "shamed and shunned" for saying things with which others disagree.  That, I said, is precisely what Brandeis's "the response to bad speech is more speech" concept is all about -- because the right to speak does not include the right to be agreed with, or even to be listened to.

But wait.  Is that not what worries Chemerinsky and Gillman?  No, and it is useful to explore why there is no inconsistency here.

RFRA in the Military on the Shadow Docket -- With a Tangent on Trump v Hawaii

 by Michael C. Dorf

Last week, in Austin v. US Navy Seals 1-26, SCOTUS stayed a federal district court order that had barred the Navy from considering the "respondents' vaccination status in making deployment, assignment, and other operational decisions." It was a rare shadow docket case in which the Court chose to intervene against religious claimants and in favor of the government's assertion of public health interests. The very brief per curiam does not provide reasons and leaves open further consideration on the merits of the certiorari docket, but even at this stage, a concurrence and a dissent raise interesting questions.

The majority comprised the Democratic appointees and what we might describe (recognizing that these descriptions are all relative) as the "moderate" conservatives: Chief Justice Roberts and Justices Kavanaugh and Barrett. Justice Kavanaugh also wrote a concurrence in which he spoke only for himself. Justice Alito wrote a dissent in which Justice Gorsuch joined. Justice Thomas dissented without opinion, but I suspect he would have joined Justice Alito's dissent were he not hospitalized last week.

Here I'll make a point about an interesting question about the Religious Freedom Restoration Act (RFRA) raised by the Kavanaugh concurrence. I'll then turn to a tension between the Alito dissent and the opinion he and Justice Gorsuch both joined in Trump v. Hawaii, the travel ban case.

How to Fix our Broken Confirmation Process

 By Eric Segall

If there is one thing that liberal, conservative, and moderate Supreme Court watchers and commentators all agree on is that the Supreme Court confirmation process is broken and has been for a long time. Last week was a painful exercise in pandering and deflection from all involved, including the nominee -- but that's not her fault. She played the game by the normal rules and I do not necessarily blame her for that. And to be clear, I strongly support her confirmation.

But, because of those rules, like all Supreme Court confirmation hearings, this one was mostly a sham. Rather than focusing on the real views of the nominee, we had to listen to Republicans obsess over child pornography and critical race theory while the Democrats spent most of their time on the nominee's character as opposed to her legal views. The nominee said she was an originalist, but that could mean many things inconsistent with what people think originalism is, and she paid lip service to the idea that judges "interpret don't make the law." And of course there were far more speeches by Senators on both sides of the aisle than questions. As always, it was one big charade.

What If Lindsey Graham Really Wanted to Talk About Sentencing Under the Guidelines? A Close Reading of USSG §2G2.2(b)(6)

 by Michael C. Dorf

Having kept her cool through the ordeal of misogynistic, sometimes racist interruptions and mischaracterization of her record by various Republican members of the Senate Judiciary Committee, Judge Ketanji Brown Jackson will now likely be confirmed, absent some unexpected hitch (which is possible in a 50-50 Senate). SCOTUS confirmation hearings have become substantially less informative since 2005, when then-Senator Joe Biden aptly called the process a "kabuki dance." Even so, amidst the cringe-inducing botching of the law by Senators and the artful dodging and absurdly formalistic accounts of judging by the nominees (of both parties), one occasionally finds something interesting. That didn't happen this week but it almost did.

Much of the questioning by the likes of past and future GOP Presidential hopefuls Ted Cruz, Lindsey Graham, Josh Hawley, and others focused on Judge Jackson's sentencing record in the handful of cases involving convictions for child pornography possession in which she had substantial discretion to choose a sentence. That record does not differ substantially from the record of other federal judges, including Republican appointees whom the Republican Senators recently confirmed for promotions. Confronted with that fact, Hawley, the creator of the Jackson-is-soft-on-pedophiles smear, said that he hadn't voted to confirm those judges to the U.S. Supreme Court--which is a complete non sequitur, given that neither Supreme Court Justices nor federal appeals court judges exercise sentencing discretion. If a nominee actually were soft on crime, that might be a reason not to confirm them to a district court judgeship, but it has no bearing on any supposed distinction between a federal appeals court judge and SCOTUS justice; indeed, if it has any bearing, it cuts the other way, as sentencing appeals routinely come before appeals court judges but rarely come to the Supreme Court.

Of course, none of that mattered to Hawley, Cruz, Graham, and the rest of GOP Senator-lawyers who should know better. The smear appears intended to put pressure on Joe Manchin via his FoxNews-informed constituents and probably also as a shout-out to the roughly one quarter of their own constituents who believe the QAnon lunacy that the Democratic Party and federal government are run by and for pedophiles.

In taking seriously a point raised by Graham during his questioning of Judge Jackson, I thus want to be clear that I know he was not acting in anything resembling good faith. I use one line of questioning simply as a launching point to discuss an issue that might have been raised and fruitfully discussed if these hearings were serious.

The New York Times Inadvertently Exposes the Emptiness of Its Embrace of the 'Cancel Culture' Trope

by Neil H. Buchanan

I have been saying for years that "political correctness" is a meaningless term, and I have repeatedly called on people who should know better to stop using it -- even (especially) when they think it does have a straightforward meaning, such as "saving 'differently abled' rather than 'disabled.'"  This has all become much worse, however, since the right's PC-panic-on-steroids of "cancel culture" and "wokeness" emerged over the last year or so -- again, abetted by liberals who truly should know better.

One bit of evidence that these terms merely mean "something I don't like and want to disaparage" came in yesterday's announcement by Donald Trump that he is no longer endorsing Mo Brooks's Senate run in Alabama.  Why did Trump turn against the man who, perhaps even more than Rudy Giuliani, was a key part of the effort to keep Trump in the White House illegally?  Brooks, Trump tells us, is now "woke" and thus unworthy of the MAGA brand.  I kid you not.

This might all be pretextual, as some commentators have suggested that Trump needed a reason to pull his nomination from Brooks's sure-to-lose candidacy (currently running a distant third place in the polls for the Republican primary).  Even so, that Trump contrived this excuse -- Brooks apparently (and surprisingly accurately) told Trump that there is no way to "rescind" the 2020 election and run a Special Election to reinstall Trump in Washington -- and then slapped the insult "woke" on the guy makes my point better than I ever could.

That does not prove, of course, that there is no content to the PC/cancel culture/woke trope.  Just because many people badly misunderstand something -- like Herschel Walker, another embarrassing Republican candidate for Senate, saying that evolution is wrong because if man evolved from apes then there would no longer be apes -- does not mean that there is no there there.  The difference is that people who care to do so can figure out what evolution is (and is not).

 

Not so with PC/cancel culture/wokeness.  It is all vacuous word play that reinforces a reactionary mindset.  And as I discuss in my new Verdict column today, the editors of The New York Times, of all people, have unintentionally added further evidence of same.  It is a rather interesting, if depressing, story.

Formal Conflicts of Interest Versus Bias: Ketanji Brown Jackson Edition

 by Michael C. Dorf

I begin with a confession. The press of other obligations and the generally farcical nature of SCOTUS confirmation hearings have led me to pay attention to the current hearing for Judge Jackson only intermittently, mostly contenting myself with summaries and highlights. Yesterday I did manage to hear and tweet about the incompetent questioning of Judge Jackson by Senators Feinstein and Cornyn. I also listened to Senator Cruz fret that Judge Jackson's service as a member of the Board of Trustees of Georgetown Day School brands her a radical because the school--according to Cruz--teaches critical race theory to young children.

That was enough for me for one day. I'll probably be unable to prevent myself from listening to more of the hearing today, but I'll take long breaks and will surely miss something. No worries, though. In the unlikely event that Judge Jackson yells, cries, or professes fondness for any category of alcoholic beverage, I'm sure I'll be able to watch it on YouTube and/or see a barely fictionalized version on Saturday Night Live.  Given my view from 40,000 feet, I'll focus today on a relatively minor issue as a window into the larger question of the appearance versus the reality of bias.

Reporters Often Get Things Wrong, But Political Hacks Can Be Worse

by Neil H. Buchanan

 

One of my central complaints about the American press is that reporters tend to be generalists and thus have only the most basic familiarity (at best) with any particular subject matter.  This can -- and frequently does -- lead them to make egregious errors, which is annoying and often harmful but does provide plenty of grist for my columns.

 

The other night, one of the MSNBC commentators made that point in the context of coverage of the war in Ukraine, noting that generalist reporters are expected to pivot from talking about corporate taxes to green energy to military matters.  He then noted that almost all of the reporters from major news organizations had quickly grabbed onto the "no-fly zone" notion, continually asking questions of Administration figures that essentially said: "A no-fly zone is obviously a good idea, so why aren't you doing it yet?"  The commentator then explained that, happily, reality had penetrated the reporters' ignorant bubble, and there had been a notable abandonment of that line of questioning.

If reporters are going to learn a lesson relatively quickly, I am certainly glad that they learned that particular lesson, given that they had inadvertently been pushing for a policy that could lead to nuclear war.  That is cause for a big sigh of relief, even though we of course still face that possible horror for a number of other reasons.  Still, the conventional wisdom can indeed change, which is encouraging.

In this relatively brief column, I want to note two much more low-stakes errors that show up again and again in news coverage.  Interestingly, the second of the two involves a politician trying to correct a reporter for a perceived error, but it is the politician who is wrong.  Hackery can be worse than ignorance.

Starting a Difficult Conversation: It is Time to Consider Ignoring the Supreme Court and What That Might Look Like

 By Eric Segall

For far too long the United States Supreme Court has unduly interfered in our local, regional, and national politics. The Justices on all sides of our political divides consistently veto important state and federal laws without any persuasive basis in constitutional text or history. This overreaching is not a new phenomenon but goes back almost two centuries. I detailed that overreaching in my book "Supreme Myths," and I have been a strong Supreme Court critic through liberal, moderate, and conservative times. 

Although numerous proposals have been advanced by legal scholars and politicians to deal with a Court that is much too involved in our politics and elections, none will be adopted in the near future, as evidenced by President Biden’s Supreme Court Reform Commission, which failed to agree on a single major idea. Yet, we must do something to rebalance the overly intrusive role unelected, life-tenured judges play in our country.

There is one possible reform which, though rarely discussed, might work and which also has a solid foundation in American history. Perhaps it is time for the people and our elected leaders to threaten to ignore the Court when it intrudes into governmental policy where it simply does not belong. Although this suggestion sounds radical, it has a strong democratic pedigree and might be the only tool available to the American people to weaken our dysfunctional highest Court.

Peace on What Terms?

by Michael C. Dorf

Since the beginning of Russia's criminal war against Ukraine, I have mostly been writing about other matters. That choice reflects the limits of my own expertise, rather than a judgment about the importance of the issues. Obviously, the war crimes Russia is committing in Ukraine are orders of magnitude more important than undergraduate admissions at elite U.S. colleges, the best characterization of causes of action in federal court, and the other relatively mundane matters I've addressed in the last few weeks. But having resisted the temptation to step outside my lane to this point, today I'll succumb to it. I want to offer a thought about the possible terms of a peace "deal" with Russia.

Russian representatives to the diplomatic talks with Ukraine have lately begun to make noises suggesting some amenability to a negotiated resolution to the current conflict. It is too soon to know whether these statements signal a genuine shift. As we have already seen in Ukraine and, consistent with its pattern in Chechnya and Syria, Putin's Russia often uses diplomatic maneuvers to stall or divert attention from intensifying attacks on both military and civilian targets. A country that bombs civilians in hospitals, sheltering in a theater, and fleeing a conflict through agreed-upon humanitarian corridors is hardly to be trusted to speak honestly in negotiations. The main reason to think that the Russians might be serious that they "hope that a certain compromise can be reached" is that while Russia has had great success in murdering pregnant women, infants, the infirm, and the elderly, from a strategic perspective the war is not going very well for its ill-equipped, under-trained, and poorly motivated forces. Accordingly, there is some cause for very cautious optimism that a diplomatic way out might be available.

Is London Corrupt, Efficient, or Both?

by Neil H. Buchanan

One consequence of a cataclysm like the war in Ukraine -- which at this point is more accurately described as a deliberate slaughter of innocents -- is to cause people to think about things in ways that were recently unthinkable.  Germany's sudden willingness to become a military power is the most obvious and possibly the most consequential such a shift, but there are any number of ways in which the old normal is being scrutinized, questioned, and possibly changed.

It did not even count as an open secret that Vladimir Putin's corrupt oligarchs were laundering their money through western countries.  That phenomenon was sometimes decried and often led to furrowed brows and the shaking of heads, but it was there, out in the open, for everyone to see.  And as the Russian plunderers have spread their money around the world, they have been especially successful in parking their ill-gotten gains in the United Kingdom, and in London in particular.

 

Now, with people looking for ways to put indirect pressure on Putin, there is a long overdue effort to try to stop these kleptocrats from putting their money in safe investments such as UK properties.  In that light, I will argue here that those investments are in fact economically efficient.  But allow me to be clear in saying that I make that assertion not as a defense of Russian oligarchs but as a criticism of the concept of economic efficiency.  If what these Russians have done can be described as efficient -- and it definitely can be so described  -- then that should tell us something about the market idolatry that causes economists to tout efficiency as the ultimate goal of public policy.

 

In that sense, there could be at least one positive side-effect of Putin's war crimes.  Any such positive effect is in no way large or important enough to justify that war (nothing could), but we have now been presented with a moment of clarity that should change how public discussions -- even those having nothing to do with military atrocities -- are conducted in the future.  Economic efficiency should at long last be recognized as a fully discredited concept.

Revisiting the Rhetorical Sleaze of the Right-Wing Conspiracy Theorists

by Neil H. Buchanan

 

Proving that I still have untapped reserves of naive hope still flowing somewhere inside my soul, I experienced a brief moment of excitement earlier this week when I saw reports that Russia's state media propagandists are aggressively pushing content from Tucker Carlson's nightly "60 minutes Hate" on Fox.  "It is essential to use as much as possible fragments of broadcasts of the popular Fox News host Tucker Carlson," flatly stated a memo from the Kremlin, as reported in Mother Jones.  That memo, by the way, is titled: "For Media and Commentators (recommendations for coverage of events as of 03.03)."

 

At that moment, I was transported to a time and place where that kind of report would have mattered.  I honestly imagined Carlson's viewers becoming outraged, finally seeing that their man was the worst kind of traitor.  Within a few moments, however, I came to my senses.  Not only would this come to nothing, but it would not matter in Fox-land even for a moment.  No sponsors would flee, even temporarily.  No half-apology would be issued.  Certainly nothing like what happened when Carlson's colleague Laura Ingraham attacked one of the Parkland shooting survivors, which at the time seemed like the possible end of her primetime career.  (No such luck.)

I had, I suppose, pictured something like the climactic scene in the film "Don't Look Up," when a guy in the MAGA-type rally crowd looks up and sees the meteor coming toward him and says: "They lied to us!"  In real life, what we saw instead this week was everyone saying: "Yeah, whatever."  Even the non-Fox media that briefly pushed the story could not maintain the fiction that it would have any impact on the world.

This passing moment, in which I almost believed in Santa Claus once again, has caused me to think about the nature of populist lying, rhetoric, and the impenetrable nature of hardened belief systems.  This is hardly new, but it is important occasionally to look up in wonder at how impossible it has become to get America's hard-right true believers to believe anything that they do not want to believe.

Early Decision

 by Michael C. Dorf

Last week, New York State Senator Andrew Gounardes introduced a bill that would forbid colleges and universities in New York State from advantaging legacies in undergraduate admissions. The bill would also ban such institutions from employing "Early Decision" admissions--in which the applicant commits in advance to attend the institution if accepted and the institution notifies the applicant of a decision earlier than it notifies regular decision applicants.

A couple of weeks ago, I wrote a Verdict column about a similar proposal in Congress to ban admissions preferences for relatives of alumni of and donors to colleges and universities that receive federal funds--which effectively means all U.S. colleges and universities. Because I addressed legacy (and donor) preferences in that column, I'll merely summarize what I wrote there before turning additional attention to the proposal regarding Early Decision.

Why Affirmative Action is not Intentional Discrimination Barred by the Constitution

 By Eric Segall

On Wednesday of last week, Professor Colb blogged about the two affirmative action cases, one involving Harvard and the other the University of North Carolina at Chapel Hill ("UNC"), that the Court will decide next year. Her excellent post predicted that the Court will hold all racial preferences illegal both under a federal statute prohibiting race discrimination in private organizations that accept federal funds (Title VI) and under the 14th Amendment. These likely holdings may also have a serious impact on the disparate impact theory of racial discrimination that is still in play for statutory cases under several federal civil rights laws. Her fear that the Court may hold disparate impact liability unconstitutional is well-founded and scary. In this post, I want to discuss a core problem with the Court's current and likely future skepticism about the constitutionality of affirmative action.

In a Post-Roe World, Can States Prevent Women From Seeking Abortions Out-of-State?

 by Michael C. Dorf

A bill pending in the Missouri legislature would forbid women in the state from traveling to other states to obtain abortions. It would use an SB8-style mechanism that relies on private enforcement, presumably for the same reason that Texas adopted that approach: to evade federal judicial review. Such circumvention might be thought necessary, even if the Supreme Court overrules Roe v. Wade and allows states to forbid abortions, because the Missouri bill could be unconstitutional even if there is no right to abortion. After all, various federal constitutional provisions limit the ability of states to regulate extraterritorially or to restrict their citizens' ability to travel to other states.

Here are some of the relevant doctrines and provisions that limit what states can do to restrict people going in and out: the dormant Commerce Clause; the Privileges and Immunities Clause of Article IV; the Privileges or Immunities Clause of the Fourteenth Amendment; the Citizenship, Due Process, and Equal Protection Clauses of the Fourteenth Amendment; and an unenumerated structural principle. The Supreme Court endorsed the unenumerated principle in the appropriately named case of United States v. Guest, where Justice Potter Stewart wrote for the majority:

Although the Articles of Confederation provided that "the people of each State shall have free ingress and regress to and from any other State," that right finds no explicit mention in the Constitution. The reason, it has been suggested, is that a right so elementary was conceived from the beginning to be a necessary concomitant of the stronger Union the Constitution created. In any event, freedom to travel throughout the United States has long been recognized as a basic right under the Constitution.

That broad principle is not all that's at stake. The Missouri bill is especially ugly in light of Dred Scott v. Sandford, in which the Supreme Court allowed Missouri to effectively extend slavery beyond its borders into Illinois and Wisconsin. The fact that so many of the modern right-to-travel cases are grounded in Section 1 of the Fourteenth Amendment, which overruled Dred Scott, makes it highly problematic that Missouri might now try to extend the reach of reproductive servitude beyond its borders.

So, if the bill passes, and assuming that some way can be found to challenge it notwithstanding its SB8-style enforcement mechanism, then even in a post-Roe world, it will be struck down, right? Maybe, but maybe not.

Oil, War Profiteering, and Political Opportunism

by Neil H. Buchanan

 

Public opinion in the US and most of Europe currently is strongly in favor of imposing sanctions on Russia, hoping to force Vladimir Putin to relent in his escalating war that is destroying cities, displacing millions, and killing countless innocents.  Whether public opinion wavers will in large part depend on how long people are willing to tolerate higher prices for oil and natural gas products.

 

Given that Republicans have been breathlessly over-hyping the uptick in inflation for the past year, the public was already in a foul mood when it came to consumer prices.  And even though Republicans called on President Biden to ban imports of Russian oil and gas, they immediately blamed him for the impact on consumers.  How long before Democrats start to panic and say that maybe US inflation is more of a worry than a few bombed-out Kyiv hospitals?

Even short of that, however, this is a good moment to stop and marvel at the breathtaking nerve that the oil companies and their defenders have shown in exploiting this historic moment.  Given my academic background, it is also a good time to explain how orthodox economists play a role in making this kind of thing possible (even inevitable).

After mulling over these issues in the current context, I have reached what is (even by my standards) a harsh conclusion, which is that the defining feature of neoliberalism is to excuse obviously rapacious opportunism.  Please allow me to explain.

Why the Affirmative Action Cases Next Term Are Important

by Sherry F. Colb

Earlier this term, the Supreme Court granted review in cases challenging Harvard's and the University of North Carolina's (UNC's) affirmative action/diversity programs, Students for Fair Admissions v. President & Fellows of Harvard College and Students for Fair Admissions v. University of North Carolina. The Court did not have to take the cases. Grutter v. Bollinger and Gratz v. Bollinger held, less than twenty years ago, that race-conscious admissions policies are legal so long as they do not amount to quotas. Race, in other words, can represent one factor that schools consider in deciding whom to admit, but it cannot be the only factor for some designated fraction of the class.

Harvard, UNC, and other schools that practice race-conscious admissions have seemingly been doing more or less the same thing since Grutter and Gratz came down. The only new issue, at Harvard at least, is the fact that Asian American applicants appear to be absorbing much of the cost of affirmative action. Instead of preferring an African American candidate whose grades and scores are on average lower than those of a white student, Harvard allegedly leaves the white students alone and "subsidizes" the spaces for diversity admissions by rejecting Asian Americans with grades, scores, and other qualifications that substantially exceed those of both the white and the African American applicants.

However, with the exception of the second certiorari question in the Harvard case, the key issues before the Court appear to concern affirmative action itself in the classic Black/white context. And the Court's decision to grant review on the first certiorari question in each case--whether affirmative action violates the law--suggests strongly that the Court intends to say "yes, it does" full stop. Accordingly, notwithstanding the fact that affirmative action programs implicate African Americans, Asian Americans, Latino and Latina Americans, Native Americans, whites, and members of other groups, here I'll focus primarily on the Black/white dynamic that is likely to be front and center in the cases.

Oil, Gas, Nukes, and the Other Nukes

by Neil H. Buchanan

The Zaporizhzhia nuclear power plant, Ukraine's largest, had its fifteen minutes of infamy recently, when the world held its breath for a few days to find out whether Russian military attacks on the nuke would lead to an unprecedented tragedy.

 

The worst did not happen -- or at least has not happened yet -- which meant that the blizzard of other war-related horrors quickly took over the news cycle.  Yet it is worth taking a moment to remind ourselves that it was only four days ago that we were honestly wondering whether Russia's unprovoked attack on a nuclear power complex would lead to a global nightmare.

 

This is all happening while the threat of the other kind of nukes -- tactical nuclear weapons -- is suddenly back on people's minds.  Stephen Colbert made a grim "duck and cover" joke a few days ago on his late night show, which reflects the tragic fact that this is probably the most worried people have been about the use of nuclear weapons in almost four decades.  Nukes and nukes.  What could go wrong?

Perhaps Dzhokhar is to Tamerlan as Ghislaine is to Jeffrey: A Comment on the Excluded Evidence in the Boston Marathon Bomber Sentencing

by Michael C. Dorf

On Friday, the Supreme Court issued a 6-3 decision reinstating the death penalty for Boston Marathon bomber Dzhokhar Tsarnaev. The U.S. Court of Appeals for the First Circuit had reversed the death sentence on the basis of two errors by the district court: (1) failure to ask prospective jurors during voir dire about the media coverage they had seen and what they had learned from it; and (2) exclusion of evidence that Dzhokar's older brother Tamerlan had committed a triple-murder a year and a half before the Boston Marathon bombing. Writing for the (all-Republican-appointed) majority, Justice Thomas found that: (1) in light of the district court's probing for bias during voir dire, the decision not to ask the precise question requested about media coverage was a permissible exercise of discretion; and (2) the district court also did not abuse its discretion by excluding the evidence of the triple-murder by Tamerlan, as that evidence relied on statements by now-dead witnesses, was tangential, and was thus potentially confusing.

The holding with respect to (1) turned in part on the scope of the "supervisory power" that an appeals court may exercise over the district courts within its jurisdiction and thus occasioned a remarkable and to my mind quite wrongheaded concurrence by Justice Barrett (joined by Justice Gorsuch) in which she suggested that, in the absence of statutory authorization (and possibly even with such authorization), federal appeals courts lack any such supervisory power. She's right that prior SCOTUS cases don't exactly establish such a power of an appeals court over district courts, but the notion that appeals courts can't harmonize procedure in the district courts they oversee (so long as they do so consistently with applicable rules and precedents) is quite radical. However, I'll save my thoughts on the supervisory power for now.

Here I want to focus on the second issue. Dzhokhar argued that his older brother Tamerlan was the mastermind behind the Boston Marathon bombing and that while that fact does not excuse Dzhokhar's participation, as a younger brother under the strong influence of his evil older brother, it somewhat mitigates his culpability. Hence, he said the appeals court was right to find that the district court lacked the discretion to exclude the triple-murder evidence. After all, a federal statute provides that in a capital sentencing hearing, "[t]he defendant may present any information relevant to a mitigating factor," even if it would be otherwise inadmissible under the rules of evidence, "except that information may be excluded if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury." Dissenting, Justice Breyer, joined by Justices Sotomayor and Kagan, said that the  triple-murder evidence was much more potent in showing how cold-blooded and domineering Tamerlan was, and thus its exclusion was an abuse of discretion in denying Dzhokhar his ability to prove mitigation.

I don't have a strong view about the right legal outcome in the case, but I do want to suggest that if the appeals court judgment had been allowed to stand, the sentencing jury would have nonetheless reached the same result even on a resentencing in which the triple-murder evidence were presented. The Ghislaine Maxwell trial is a useful comparison.

The Distinction Between Failure to Extend a Precedent and Cutting Back on it -- A Comment on Egbert v. Boule

 by Michael C. Dorf

Wednesday's SCOTUS oral argument in Egbert v. Boule presented the question whether a Bivens action is available to challenge alleged excessive force in violation of the Fourth Amendment and alleged retaliation in violation of the First Amendment by a Customs and Border Patrol agent who came onto the plaintiff's property--a bed-and-breakfast unfortunately named "Smuggler's Inn that sits on the border between Washington State and British Columbia--to investigate the immigration status of a Turkish guest.

Readers may recall that Bivens was a 1971 Supreme Court opinion that allowed a cause of action for damages due to Fourth Amendment violations by federal drug enforcement officers. It provides a judge-made analogue to the statutory cause of action against state and local officers that Congress enacted during Reconstruction and is currently codified at 42 U.S.C. §1983. For some years, it appeared that Bivens might function as the equivalent of §1983 for federal defendants, but after a time, and especially in recent years, the Supreme Court has signaled that a Bivens action is often unavailable where a §1983 action against state or local officers would be available. The cutback--reflected most dramatically in cases like Ziglar v. Abbasi in 2017 and Hernandez v. Mesa in 2020--suggests pretty clearly that the current Court is not prepared to overrule Bivens but also will not allow its substantial extension.

But what's an extension versus an application? Under the current precedents, courts are supposed to first determine whether the plaintiff's claims arise in a "new context" or involve a "new category of defendants." If not, then Bivens applies. If so, then Bivens can still apply unless there are "special factors that counsel hesitation." In Egbert, the Ninth Circuit found that both the Fourth and First Amendment claims arose in a new context but that there were not special factors, and so allowed the case to go forward. I doubt that the Supreme Court granted certiorari to give the Ninth Circuit a medal, so it seems likely that the Court will agree that the case arises in a new context but disagree about special factors, and thus disallow the Bivens action.

If You Had to Choose Your Autocrat ...

by Neil H. Buchanan

The intensifying humanitarian disaster in Ukraine is the inevitable result of an obvious violation of international law, to say nothing of being a horrific and wholly unjustifiable act of war that will permanently harm even those Ukrainians who survive.  Those who are able to take refuge outside of their country as well as those who stay to face whatever comes next have had their lives irreparably damaged, not only by losing loved ones but by losing everything that they have ever known as a normal life.

And this is all one man's fault.  Vladimir Putin has surprised everyone by deviating from what most observers thought to be true, which is that Putin possesses nothing resembling a human conscience but that he is fully in control of his faculties and thus can be impressively -- and reliably -- strategic.  He was thought to be a sociopath with keen reasoning skills.  Now, however, no one is sure whether he has gone insane and might no longer be able to control himself.

The most pressing reason that this matters, of course, is that Putin is making not-veiled threats to use nuclear weapons.  More broadly, however, it even brings into doubt whether it is possible to negotiate an off-ramp with him.  Unless one simply assumes rationality -- which, as those of us who have critiqued theories like "rational expectations" have emphasized, becomes a tautology by which every action (including, say, suicide) can be described as the result of a reasoned line of thought -- Putin's previous reputation for being "homicidal but cunning" now seems never to have been true or to have suddenly stopped being true.

This raises a question for people everywhere who worry that they might soon live under one or another autocrat in their own countries.  There are many different types of autocrats.  Under which type would you rather live?

Ten Observations About Adrian Vermeule's Book "Common Good Constitutionalism"

By Eric Segall

Professor Adrian Vermeule of Harvard Law School is somewhat of a polarizing figure whose opposition to gay rights and same-sex marriage are, to this writer, unpersuasive and troubling. But those subjects make up only a tiny portion of his new book "Common Good Constitutionalism." On many matters of public policy and constitutional law, Vermeule's suggestions are, and he will hate this word, progressive. More importantly, his book contains a devastating critique of the never-ending debates between originalists and living constitutionalists--debates that have not furthered constitutional discourse in a helpful manner. We must stop dismissing people because we disagree with some of their ideas.

I have been attacked on Twitter for taking this book seriously. Some of those charges suggest that, because the man himself has said this or that allegedly offensive thing in the past, his book should be ignored. But I am discussing the book, not the man. Without minimizing my strong disagreements with Vermeule on some fundamental issues, the book is important and valuable because it presents a smart, sophisticated, and fresh (he would likely say ancient) perspective on the law. As a law professor, why wouldn't I be interested?

This blog post is not a full blown review. I will be writing one of those for the law reviews or some other forum. This post is motivated by my desire to wrestle with and learn from people with whom I disagree on some core matters and my belief that people shouldn't judge a book until they actually read it. There is so much for everyone in the book's 184 pages (before the footnotes).

Slim Hope to Save Democracy is Better than None: What Can Happen at the State Level?

by Neil H. Buchanan

 

It is hardly news that the institutions of democracy in the United States were never perfect, but anyone who has paid even a tiny bit of attention over the past six years has had reason to worry that things are reaching a tipping point beyond which we will completely lose our flawed democracy and become an autocracy.  Indeed, I am among those who have argued that we are already past that point and that we are now in the confusing period where it is still possible to deny what is happening even as we rush toward our post-democratic national (and perhaps global) fate.

Even I, however, have refused to give up all hope, if only because one never knows what hidden or ignored options might yet save us.  And even if it does turn out that the future cannot be changed, it is surely better to have exhausted every last possibility rather than merely to assume that there was never any point in trying.  I am thus constantly on the lookout for anything that suggests a way forward that might avert what currently seems inevitable.

To the possible rescue comes a new article from a rising star on the University of Wisconsin Law School's faculty, Professor Miriam Seifter: State Institutions and Democratic Opportunity.  Forthcoming in the Duke Law Journal, Professor Seifter's analysis highlights some possible ways in which state-level actions could push back against the increasingly bleak picture at the federal level.  Professor Seifter presented her draft at a faculty workshop at my law school last week, and with her permission (with caveats to be stated below the jump), I am using her remarks and that article to motivate and organize my thoughts in today's column.

Bottom line: Although I ultimately conclude that there continues to be much more reason for pessimism than optimism, the case for the latter is stronger than I previously allowed.  Given how grim the world is looking lately, anything that offers a glimmer of hope is to be welcomed.